Is Ajmal Amir Kasb to be allowed to defend himself????

At a gathering of a few of Mumbai’s socially elite, unanimous in its condemnation of Ajmal Amir Kasab, it was as if one voice was ringing out “He does not deserve a lawyer. No Indian lawyer should defend him.” A greater and more vociferous show of wrath came forth when a reference was made
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to the former Additional Advocate General of Maharashtra, Mr. P. Janardhan‘s willingness to accept the brief.Reasons, morally and ethically acceptable of course, - Ajmal Amir Kasab is a Pakistani citizen - has committed a heinous crime killing innocent Indians and foreigners - there is clinching evidence - he has been caught red handed etc. etc. Fair enough, Indians are fully justified in venting their anger and expressing their disgust. In a solid show of patriotic zeal and indignance, the Bombay Metropolitan Magistrate’s Court Bar Association has passed a resolution restraining its members from taking up the case.Further, when the word spread that Advocate Ashok Saraogi was willing to consider taking it up, there were massive demonstrations outside his house. Mr. Saraogi had to issue a denial, in all probability ot save himself. Tactics such as these amount to intimidation and do not speak well of the democratic principles that India claims to be committed to.An advocate of the Legal Aid Panel also refused to take up the case at a cost of losing his sanad. It is evident that most of the lawyers have been guided by feelings of patriotism as well as personal emotions. one can not however ignore the element of fear of public opinion and the reactions that it may evoke form society in general and peers in particular, which have possibly guided the stand taken on the issue by various advocates A lawyer friend confessed to me off the record of course, that if any advocate took up the case he feared ostracism by colleagues at the Bar apart from public criticism. The possibility of pressure from Pakistan too could not be ruled out, was another cause for anxiety. What the advocates do not realise is that by this sort of an attitude, they are negating the very principles of democracy and human rights that our country claims to stand by.The Supreme Court in a judgement has contended that every accused, irrespective of how heinous the crime committed may have been has a right to legal defence. There are instances where cases have been set aside for retrial because the accused was unable to put up a defence lawyer. The Right to Life - a fundamental right as guaranteed under Article 21 of the Constitution of India also guarantees the right to legal aid. This according to jurists implies that an accused is entitled to legal aid irrespective of whether he has specifically asked for it. As a last resort, if the accused is unable to appoint a lawyer on his own, it is the responsibility of the state to provide free legal aid.Also Article 39 A of the Constitution mandates equality before the law and free legal aid. Supporting this provision are Sections 303 and 304 of the Criminal Procedure Code, which stress the right of the accused to be defended by a lawyer, and the duty of the state to provide legal aid.In Kasab’s case it may be argued that he is a foreign national. It makes no difference; he is still entitled to legal aid in India. Article 14 of the Constitution amply emphasises this under the provision of equality before the law.I am no legal expert, but as a socially conscious Indian and human being, I think it is morally wrong to obstruct an individual, irrespective of nationality from availing of what is his basic human right. In the worst case scenario, if no lawyer is forthcoming, the accused is rightfully entitled to plead his own case. If this is what happens to Kasab, it would make a clear mockery of our system of Justice. The accused is unacquainted with the legal procedures and formalities and this could lead to unnecessary obstructions and diversions in the course of the trial. Even if Kasab is awarded the death penalty, it should not be before the due process of the law has been completed, namely a fair trial and the accused proved guilty beyond a shadow of doubt. A resolution like the one by the Bombay Metropolitan Magistrate’s Court Bar Association definitely does not have any legal binding on advocates wanting to take up the case. In fact by passing it the lawyers have in effect committed a breach of professional ethics. Taking or refusing a brief is an individual lawyer’s prerogative, and no advocate should be “expected to toe the line.” More important, since Kasab’s Pakistani citizenship has been reasonably proved, it is imperative that he be given consular access. It is then incumbent on the Pakistani Embassy to take the initiative in engaging an advocate who would give the case his best shot.The former Advocate General of India Mr. P. Janardhan has done well to express his willingness to take the brief, provided he is approached by the Pakistan Embassy. His decision really upholds the highest standards of professional ethics in the legal profession.Even if the case is lost, his defence would have succeeded in upholding India’s democratic traditions and commitment. This would give a much needed boost to India’s image on the international scenario and project the country as an upholder of human rights and democratic principles.

Just for now,

Lokesh Rai

23/12/08

Winter, Dubai